Marcy Johnson v. West Publishing Corporation

Filing 7

28(j) citation filed by Petitioner West Publishing Corporation w/service 12/22/2011 - FOR CAL. [3862558] [11-8020] (KMW)

Reed Smith LLP
Reed Smith Centre
225 Fifth Avenue
Pittsburgh, PA 15222-2716
[phone]
Fax [phone]
reedsmith.com

Kim M. Watterson
Direct Phone: [phone]
Email: [e-mail]

December 22, 2011

Mr. Michael E. Gans, Clerk of Court
United States Court of Appeals
for the Eighth Circuit
Thomas F. Eagleton U.S. Courthouse
111 South 10th Street, Room 24.329
St. Louis, Missouri 63102
Re:

Marcy A. Johnson v. West Publishing Corporation
Case No. 11-8020

Dear Mr. Gans:
Pursuant to Federal Rule of Appellate Procedure 28(j), West Publishing Corp.
submits Cook v. ACS State & Local Solutions, Inc., No. 10-3818, --- F.3d ---, 2011
WL 6221645 (8th Cir. Dec. 15, 2011), a recent decision of this Court affirming the
dismissal of claims under the Driver’s Privacy Protection Act (enclosed). This
Court’s interpretation of the DPPA in Cook directly addresses the statutory
construction questions involved in the district court’s order denying West’s motion for
judgment on the pleadings that West’s has asked this Court to review pursuant to
28 U.S.C. § 1292(b). Indeed, Cook’s controlling interpretation of the DPPA requires
reversal of the district court’s order and the entry of judgment in favor of West. Cook,
therefore, supports West’s request for interlocutory review of the district court’s order.
More specifically, the legal question West seeks to have this Court review is:
Did the district court err in concluding that bulk obtainment of motor vehicle
information for resale for DPPA-permitted uses constitutes a per se violation of the
DPPA? See Petition at 3. This Court’s opinion in Cook answers that question in the
affirmative and, consequently, the district court’s order must be reversed. Based on a

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Mr. Michael E. Gans
December 22, 2011
Page 2
careful examination of the DPPA’s language and the relevant legislative history, this
Court held: “Section 2721(c) explicitly permits the resale of drivers’ information, and
it does not require that resellers must first use the information themselves. We hold
that Plaintiffs cannot establish a DPPA violation by alleging that Defendants obtained
personal information with the sole purpose of selling it to third parties who have
permissible section 2721(b) uses for the information.” Slip op. at 12-13 (citations
omitted).
West asks that this Court grant its Section 1292(b) petition, vacate the district
court’s August 3, 2011 order, and hear West’s appeal. West further suggests that
expedited briefing and summary consideration are appropriate in this case.

Very truly yours,
/s/ Kim M. Watterson

Kim M. Watterson
KMW/hh
Enclosures
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All counsel of record